Recovery from employer, third party in suit bars claim for benefits
Wise v. Richard Wise d/b/a Wise Services, No. 4879 (S.C. Ct. App. 08/24/11).
Ruling: The South Carolina Court of Appeals held that a worker was not entitled to benefits because he recovered damages from his employer and a third party in a lawsuit.
What it means: In South Carolina, if an injured worker simultaneously pursues a third-party action and a workers' compensation claim, he must give the employer notice of the suit.
Summary: A worker came into contact with a high voltage electrical line and sustained severe burns. He sought medical and compensation benefits from his employer. The employer denied that the worker was an employee and asserted that he was an independent contractor. The employer also claimed that the workers' compensation laws did not apply because it did not have the requisite number of employees. The employer also maintained that if the worker was an employee, he was a casual employee. In the meantime, the workers' compensation commissioner denied the claim, finding that the employer was exempt from requiring to provide workers' compensation coverage. Later, the worker sued the employer and the city where the accident occurred. He obtained a default judgment against the employer and settled with the city. The South Carolina Court of Appeals held that the worker was not entitled to benefits.
The court explained that an employer that fails to secure compensation for an injured worker can be liable under workers' compensation or a lawsuit, but not both. If an injured worker simultaneously pursues a third-party action and a workers' compensation claim, he must give the employer, carrier, and Workers' Compensation Commission notice of the suit. Here, the worker did not provide notice of his suit, and he recovered from the employer in a default judgment, so he was barred from recovering benefits. The default judgment against the employer was the worker's exclusive remedy.
Read more at the WorkersComp Forum homepage.
October 27, 2011
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